For a railroad to receive from a connecting line, and transport, cars with double buffers or deadwoods, in good condition, is not negligence making it liable to a brakeman for injury received in coupling, they being in use on other well-managed roads.

In Error to the Circuit Court of the United States for the District of :Minnesota. Action by J; E. Blake against the Northern Pacific Railroad Com· pany for injury received by plaintiff as a brakeman. Judgment for plaintiff. Defendant brings error. Reversed. Tilden R. Selmes (J. H. :Mitchell, Jr., with him on brief), for plaintiff in error. :M. D. :Munn, for defendant in error. Before CALDWELL and SANBORN, Circuit Judges, and THAY· ER, District Judge. THAYER, District Judge. The only question arising upon this record, which we deem it necessary to consider, is whether the trial court properly allowed the jury to determine, as it seems to have done, whether the use by the defendant company of cars having double buffers, or "double deadwoods," as they are more frequently termed, was an act of culpable negligence, such as would justify a recovery. The defendant in error brought a suit against the plaintiff in error, the Northern Pacific Railroad Company, for injuries which he had sustained while in its employ, as a brakeman, in attempting to couple together two foreign freight cars that were provided with double buffers. The complaint, as originally drawn, did not allege that the milroad company was at fault in receiving and hauling cars of that construction. But shortly after the trial began the plaintiff was permitted, over an objection made by the de· fendant, to amend his complaint so as to charge that the defendant was guilty of negligence in using cars with double deadwoods; and considerable testimony was thereafter introduced which tended to show that the use of double deadwoods enhances the risk of making a coupling, and that more care must be exercised in hand· ling cal'S that.are thus constructed. At the conclusion of the testi· mony the court, among other things, charged the jury as follows:
"Although cars come from other roads, and may be more dangerous, he is required to handle them; and although cars belonging to the defendant, and used on its road, were different in their construction, the plaintiff is supposed to be oompetent to handle all cars which the company is bound to receive and haul over its road.. So that one of the questions which is involved in this allegation of negligence is, did the defendant company have In this train of cars certain cars which were not adequately and reasonably safe for the purposes for which they were used, in connection with the duty which the plaintiff was

required to perform? · · · The use of double-deadwood cars upon defendant's not,per they. ml;LY .be constructed 'in such a way or in as would them not'reasonably safe appliances uqder the and to determine whether, under the circumstances of ttits'case, the d([email protected]))t company exercised reasonable care and caution to furnish reasonably. safe appliances for this plaintiff to do his work with when coupling cars." '

45, 48.

As there was no which tended to show that the cars in question differed in any as to their mode of con· other cars having dou.blefdeadwoods, we are forced to regattt'thisportion Of the jury at to find that the mere fact that the company had these partIcular its l'()!ld W:ilfum act 9£ pijgligence, for which it might be held responsible. If this was not the meaning which the court CQIl;YieY, it is certainly tr"!J;e.t1;lat the language employed .W ¢hat"and;' a careful perusal of. the evidence, we are theJIJrymust llave held the company . i ,for J;>laintiff's ipjuries . solely on the ground that itdi'd not reasonable care ott the occasion of the acci· dent, in using cars with double deadwoods. It is true that there was some evidence tending to show that one of the projections formitig a: part of thedead'W<;>Od had been brok· en off prior to the accident, but, as this was on ,.the side of the ,caropposite to that on which the plaintiff was standing when he was ,at ,¥1 t?atsuch defect in ,accIdent. we C n. .a it,fu . }ili! Jil))f)sible defect injury, or' 'that the jury so found.' . tar plQre pr,OPflble, we. tl;iihk, ihat the jury understood tbatpar,t'.Qi'the cba,rge t'o.Wpich w,e pftve.. above referred as leaving' to fui,4rTUlldth.attheydid in fact ultimately &iid-that,: th.e rail,jYay . cOmpany ,at, faul t, :in, view of all the c'li'cumstances of becnuse., it with double qead'woods... ,. t6 consider the case fiomthat, standpoint, and.to, determine whether it was the legit· illw.te fUn¢tion .ofthe to deciqe railroad company violated its duty to the plaintiff" iIl,. receiving and hfluling cars WPich we-reequipped withsucheou'pIing, appliances. With refer· this questioJ;l, we tha;tjtjnay be said that none of the adjudged ca;.ses go the ext.entof holding ihat a railway cwnpany Is guilty "of c,l,Ilpable negligence in using cars that are providedw.ith bUffers, whether they i'tre cars of its own con· litr;uctipn, or cars tlIat rec'etvlfd from. some connecting C:3,!:'rier. 'J,'be gellerlll1y accepted is that a railway c9mpany is not bqunq to use upon, al. of the cars in'its possession the safest possib.1e or, ,aPEliances of the latest. most is 'atli1;Jertrto such,coupling appliances as are in use a t :tp,e tune QY, .other. ,Wtlll,managed roads, and as are regarded I,bydompetentrailroad:men' as ordinarily safe and fit court, that docto trine In the, of v" 7 C. G. A. 656, 59 Fed.
,',I.,), ' " ') .',

clfse

NORTHERN PAC.R; CO."'.

47

The fact that railroad companies are now very generally required by statutory enactments to receive and transport cars which are tendered to them by connecting carriers has led several courts to decide, after a very full and careful consideration of the question, that it is the right and duty of a railway company to receive and transport double-deadwood cars, such as are at the time in use on other railroads, if they are in good condition and free from defects, even though the use of such carsmay enhance the risk to which a brakeman is exposed in the act of making couplings. It has been held, ,in effect, that the necessities of commerce and public policy alike demand that such cars should be received and transported by a rail· way company, even though it does not make use of such coupling appliances on cars of its own construction, so long as such -cars are in general use on other leading lines of raih:oad, and so long as many competent persons justify the use of such couplingappliances on the ground that they are not unnecessarily dangerous, and that certain advantages result from that method of construction. In line with these views it is also very generally held that the risk of getting hurt while coupling cars having double deadwoods is one of those ordinary risks of the employment which a brakeman assumes on taking service, especially if, as in the case at bar, he is an old and experienced railroad operative. Railroad Co. v. Smithson, 45 Mich. 212, 7 N. W. 791; Baldwin v. Railway Co., 50 Iowa, 680; Railroad Co. v. Flanigan, 77 Ill. 365; Hathaway v. Railroad Co., 51 Mich. 253, 16 N. W. 634; Thomas v. Railway Co., 109' Mo. 187, "18 S. W. 980. The doctrine of theSe cases has been recently cited and approved by the supreme court of the United States in Kohn v. McNulta, 147 U. S. 238, 241, 13 Sup. Ct. 298. It is proper to note in this connection that our attention has been directed by counsel for the defendant in error to certain cases, notably Reynolds v. Railroad Co. (Vt.) 24 At!. 135; Railway Co. v. Frawley (Ind.) 9 N. E. 594; Railway 00. v. Callbreath, 66 Tex. 528, 1 S. W. 622; and Hungerford v. Railway Co., 41 Minn. 444, 43 N. W. 324,-in support of the contention that it was the duty of the defendant company to have given the plaintiff special notice to be on the lookout for cars having double deadwoods, and that it was guilty of culpable negligence in failing to give such notice. The cases last referred to do indeed support the proposition that it is the duty of a railway company to give special warning to young and inexperienced persons in its employ, when it proposes to make use of cars that are not in general use on its road, and that are more than ordinarily dangerous. They also show that it is likewise the duty of a railway company to give like notice when it proposes to make some special and unusual use of a peculiar form -of coupling appliance, especially if such unusual use of a peculiar form of coupling appliance renders the act of coupling more dangerous. These cases merely illustrate the general doctrine that where an employe is young and inexperienced, or the risk is a latent or unusual one, and for either reason there is more than -ordinary danger of getting hurt, the employe should be specially warned. In such cases the employe should not be left to rely upon

'.,48

QDlllRAL REPORTER,

vol. 63.

his experience' of"rthe .dQJlgets oI:dinarily incident to his calling. llutwe do not see that the doctrine in question has any special. applica'tion to the case at The plaintiff was an experienced brakeman, who had been in service, either as brakeman or conductor, for fully 17 years. It was shown that at least 10 doubledeadwood cars daily passed through the yards at the eastern terminus. of the defendant's railroad at St. Paul. It was further shown; by the. plaintiff's own admission, that he was familiar with one of the defendant company's rules, which contained the following warning to all of its employes: .
"Groo.tcare must be exercised by all persons in coupling cars. Inasmuch as the coupling apparatus of cars or engines cannot be uniform in style, size or strength, and is liable to .00 .broken, and as, from various causes, it is dangerous to expose between the same the hands, arms, or persons of engaged in coupling, allemployiis are enjoined, before coupling cars or engines, to examine so as to know the kind and condition of the drawheads, drawbars, links, andCQupling and they are prohibited from placing 'in the train any car with a defe·ctive coupling until they have first its defective condition to the yardmaster or conductor."

Moreover, the trial court did not submit an issue to the jury, nor was it asked to do so, touching the question whether the plaintiff was entitled to special notice of the use by the company of double-deadwood cars by reason of his lack of experience in handling.such cars. On the contrary, and as heretofore stated, the case was subfuittedto the jury under instructions which, in our judgmerit,gave thefu full liberty to find that the company was at fault in receiving and using cars with double buffers, and upon this erroneous ground a verdict against the company in the sum of $10;000 evidently rests. The judgment of the circuit court must therefore be reversed, and the cause remanded, with directions to award·a new trial. It is so ordered.

On the reappointment of the treasurer of a beneficial association ,for a new term, a surety company gave to the association its bond to make good "such yecuniary IQss, if any, as may be. sustained by the employer by reason of fraud or dishonesty of the employed. in connection with the duties referred to, a:Qlountlng to emoozzlement or larceny, which Waf committed and discovered' during the continuance of said term, or any renewal thereHeld, that entrle$, receipts, and reports made by him dUring the life .ot tM bond, in the ordiIl&ry. course of his as treasurer, charging himselt with certain items, were not conclusive against the surety as to the 'time when such items were received, there being no circumstances creating an estoppel in pals. .
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